White v Blackmore

An occupier may, where otherwise legally free to do so, exclude the statutory common duty of care under section 2(1) of the Occupiers Liability Act 1957 by conditions imposed on a gratuitous licensee. A licence granted without contract is generally revocable and may be varied on reasonable notice.

Voluntary acceptance of the ordinary risks of a dangerous sport does not establish volenti non fit injuria in respect of an unknown risk created by defective safety arrangements. However, a plainly displayed and sufficiently communicated condition may exclude liability for negligence if, on its true construction, it applies to the visitor in the capacity in which the accident occurred.

The widow of a jalopy-racing competitor appealed from Lawton J’s dismissal of her claim for damages arising from her husband’s fatal injuries at a race meeting.

The trial judge found that the organisers had negligently arranged safety and spectator ropes around a single stake. He also found that the deceased was one-third responsible for standing where he did. The claim was nevertheless dismissed on volenti non fit injuria.

On his return to the meeting in the afternoon, the deceased had seen prominent notices purporting to absolve organisers from liability for accidents. At the time of the accident he was watching a race with his family, between races in which he intended to compete. The central issue was whether the notices precluded recovery.

1. Appeal dismissed by a majority. Buckley and Roskill LJJ upheld the dismissal, although both rejected the trial judge’s reliance on volenti non fit injuria. The organisers’ negligent safety arrangements and the deceased’s one-third contributory responsibility were not disturbed.
2. Voluntary acceptance was not established. Per Buckley LJ, the defence requires that the claimant freely and voluntarily encountered a risk with full knowledge of its nature and extent. The deceased could not be taken to have accepted an unknown risk arising from the organisers’ defective safety arrangements. Roskill LJ agreed that the doctrine did not answer a risk created by that negligence.
3. The afternoon entry was on an effective exclusionary condition. Per Buckley LJ, the deceased’s morning participation created no contract. Any gratuitous licence was revocable and variable. On returning in the afternoon he entered as both a prospective competitor and a spectator, subject to the prominent entrance notice. Under section 2(1) of the Occupiers Liability Act 1957, the pre-existing power to limit liability to a licensee by suitable conditions was preserved.
4. The condition covered this accident. The deceased was a spectator when watching races with his family. The notice’s exclusion of liabilities for personal injury “howsoever caused” clearly extended to the organisers’ negligence. Section 2(4) did not assist the appellant because the notice was not merely a warning of danger; it imposed an exclusionary condition.
5. Dissent. Lord Denning MR would have allowed the appeal. In his view the programme was the contractual document, the notice had not been incorporated into it, and a non-contractual warning could not displace the statutory duty. He also considered that section 2(4) was decisive against reliance on the notice.

No order was made as to costs. Leave to appeal to the House of Lords was granted.

• Court of Appeal: By majority, dismissed the widow’s appeal and upheld the dismissal of the claim: [1972] 2 QB 651.
• High Court: Lawton J found the organisers negligent and assessed the deceased’s contributory responsibility at one-third, but dismissed the claim on volenti non fit injuria on 18 December 1969.